Sari : Ahad Mir vs Ahad Mir ors.: Akram Mir & Ors.

Appeal No. 44 and the crossappeal arise in the following circumstances.

Hamza Mir who was the proprietor of the land in question died leaving behind the two sons Ahad and Wali and a daughter seriarvi who was

married to Akram. The plaintiff brought a suit in the court of SubJudge Handwara praying for a declaration that the will executed by Hamzi Mir in

favour Sarvi and a sale deed executed by him dated 28456 registered on 4556 in favour of Akram were invalid and inoperative inasmuch as

Hamza was a person of an unsound mind or at any rate a person of weak intellect and understanding and the two documents has been executed by

Akram and Sarvi by exercising undue influence on Hamze Mir. The plaintiffs further prayed for a decree for Possession on the basis of the right of

prior purchase on the ground that they were the next heirs. The plaintiffs further averred that Mst Sarvi was not a Khana Nashin daughter of.

Hamze Mir, but was married outside the family and that therefore the plaintiffs alone were entitled to inherit the property according to the custom

that was prevalent in the family. The plaintiffs, however, did not allege the existence of a specific custom by which a daughter simplicitor loses the

right of inheritance completely unless she is taken as a Khana Nashin daughter. Such a custom may be implied from what has been pleaded in para

1 of the plaint, but it has not been expressly stated. It may also be mentioned here that no issue was raised by the trial court on the question of the

existence of a custom which excluded a daughter simplictor from inheritance merely because she was not taken as a Khana Nashin daughter. The

trial court, after taking the avidence of the parties and framing as many as eight issues, negatived the plaintiff's case that the sale deed or the will

was procured by undue influence, The trial court, however held that the plaintiffs had proved that Mst Servi was not taken as a Khana Nashin

daughter by Hamza Mir and therefore she was not entitled to inherit as such. As regards the question of custom no specific finding was returned by

the trial court, Thus the plaintiff before the trial court failed to prove that the sale deed was an invalid transaction and succeeded in there respects.

As regards issued eight which cogred the or question of presemption, the preemption, the trial court held that the same was not pressed and

therefore decided this issue against the plaintiff. Against this degree both mst Sarvi and Ahad Mir and others filed appeals to he District Judge. The

two appeals were heard togethar by the District Judge and he upheld the judgment of the trail court and dismissed both the appeals. Hence these

two second appeals to this court.

A perusal of the judgments of the court below would show that on some matters the judgment is concluded by findings of act. Both the court

below have concurrantly found as a fact that the sale deed was a valid transaction and that Hamza Mir was no a person of an unsound mind. The

appellate court has further held that there was no good evidence to show that any undue influence was practised on Hamza by Akram or Sarvi

either at the time of execution of the will or the sale, Both the courts below have held that Mat Servi has not been able to prove to have been

adopted as the Khana Nashin daughter of Hamza Mir and she was therefore not entitled to inherit the property left by him. The appellate court is

silent on the question of preemption although a specific ground was taken before it by Ahad Mir and others in their memorandum of appeal.

Mr. Dhar appearing for the appellant Mst Servi in appeal No. 70 of 65 raised a short point. He submitted that even if Srvi was not proved to be

a Khana Nahin daughter of Hamza Mir, still she was entitled to succeed as a daughter simplicitor under the Mohammedan Law unless the plaintiffe

were able to prove the existence of a specific custom excluding a daughter simplicior from ihoeritance. It was contended before me that no

evidence on this custom was adduced by the plaintifs nor was the matter put into issue. I find from the judgment of the trial court that through as

many as eight issues were framed covering the entire range of the controversy between the parties, yet no issue on the existence of custom

excluding a daughter who is not a Khana Nashin daughter from inheritance was framed No application was filed by the plaintfs asking the court to

frame an issue on this point nor was any grievance made before the District Judge or even before this court to the effect that an issue on this

question was not raised by the trial court/From the facts therefore the only irresistable inference that can be drawn is that the plaintiffs did not

choose to press their case ragarding the existence of a custom by which all daughters except a Khana Nashin daughter are excluded from

inheritance.

When we are dealing with a case involving custom, the custom must be specifically and clearly pleaded and proved. In the valley there are two

important customs which prevail in some of the families. First that if a daughter is taken as a Khana Nashin daughter she inherits not only the share

of a daughter simplicitor bnt the share of a son. In same families there is a custom that a daughter is excluded from inheritance completely, unless

she is adopted as a Khana Nashin daughter. These two custom are absolutely separate in character and should not be confused as being part of

the same custom. The plaintifs had pleaded the first custom and impliedly referred to the other. The defandant in her written statement did not

accept the second custom impliedly pleaded by the plaintifs. Although the accepted the first custom namely th e question of Mst Sarvi being a

Khana Nashin daughter and averred that she was a Khana Nashin daughter of Hamza Mir. As, however, both the coarts below have concurrantly

found as a fact that Mst Sarvi was not taken as a Khana Nashin daughter by Hamza Mir and the recital in the will to this effect was wrong, it is not

possible for me to disturb this finding of fact in second appeal. This however does not solve the issue. Even if Mst Sarvi was not proved to be a

Khana Nashin daughter she is still entitled to inherit as a daughter simplicitor in which case is entitled to get l/5th shars in the property left by Hamza

Mir except the lands which he had sold to Akram. As regards the validity of the will and the sale deed here also both the courts below have found

as a fact that the sale deed was valid and have negatived the plea of undue influence and insanity taken by the plaintiffs. Mr Karim, howaver,

inganiously aigued that the courts below have not adverted their attention to the specific plea taken by the plaintiffs on the question of undue

influence. It is true that in the plaint the plaintiffs have stated that Hamza Mir was an old man of week intellect and Mst Sarvi and Akram taking

advantage of his weekness got the sale deed and the will executed in their favour. It is well settled that a plea of undue influence or of fraud must

contain sufficient particulars. In the present case the plaint does not contain the necessary particulars. It is not mentioned as to how and in what

circumstances Sarvi and Akram could have influenced Hamza Mir, nor has it been pleaded in what manner Hamza Mir was a person of a weak

intellect. On the other hand the evidence which the plaintiffs themselves adduced was only on the question of insanity by showing that Hamza Mir

had completely lost his senses, was a man wandering in the streets, throwing stones on others and behaving like a completely instance person. This

evidence has been disbelieved by both the courts belowThe District Judge has rightly pointed out that even on the question of undue influence no

evidence was adduced by the plaintiffs to prove their case. In these circumstances therefore the finding of fact regarding the validity of the sale

deed can not be challenged in the appeal filed by Ahad Mir & ors (Appeal No. 44 of 65 The learned District Judge had further held that as the will

was in favour of Mst Sarvi who was a heir and the previous consent of the other heirs was not taken, therefore the will was not legally valid. In my

opinion this ground taken by the learned Judge is absolutely sound and must prevail. A will in favour of one of the heirs without the consent of the

other heirs under the Mohemmedan Law is invalid (Sea S. 117 page 123 of Mulla's Mohemmedan Law 16th edn) The consent can be given by

the heirs even after the death of the testator but there is no avidence in the present case to prove that any such consent was given after the death of

the father. Uuder these circumstances the will has to be excluded from consideration.

Thus the position is that Mst Sarvi was not a Khana Nashin daughter nor was there any custom by which she could be excluded from

inheritance by not being adopted as a Khana Nashin daughter and therefore it is manifest that Sarvi was entitled to l/5th share in the property left

by Hamza Mir. As, however, Mst Sarvi has not filed the present suit, it is open to her to seek a declaration for possession in a properly constituted

suit.

The next point urged before me is the plea with respect the right of prior purchase. In the written statment the defendants have clearly averred a

case of conditional waiver but in the end they said that they are ready to concede the right of premption to the plaintiffs if the consideration of sale

is paid to them by the plaintiffs. The offer made in the written statement by the defendants constitutes a clear admission of the right of presumption

claimed by the plaintiffs. Mr Dhar, however, submitted that although the defendants were directed to pay l/5th of the purchase money, they did not

pay the same and therefore they did not preses that issues. A perusal of the file however reveals that there was no order by the trial court at all

directing the plaintiffs to deposit l/5th of the purchase money. If there was no such order then any concession made in ignorance of the real facts

cannot be binding on the plaintiffs. Since their right to claim preemption has been admitted by the defendants and .accrues by operation of law

under the provisions of the Right of prior purchase Act, it can be pressed into service at any stage even before this Court. The plea was taken very

clearly before .the Dist. Judge in para 8 of the Memorandum of Appeal. And was pressed. In these circumstances. I find it impossible for the

defendants to resit the plea of preemption at this stage.

It was faintly suggested by Mr Dhar that the right of preemption was barred by limitation. As the question was not raised earlier, I cannot allow the

defendants to raise this plea for the first time in second appeal because if raised in the pleadings, the plaintiffs would have show how the plea was

not barred by time. In these circumstances therefore there is no doubt that the plaintiffs are entitled to succeed so far as their right of preemption

regarding the sale of 23 Kanals and 4 marlas in concerned.

The result is that appeal No. 70 is allowed to this extent that the finding of the courts below that Mst Sarvi is not entitled to inherit as a daughter

simplicttor is set aside and it is found by this court that she is entitled to inherit to the extent of l/5th of the property. In order, however, to get

possession, the defendant has got to file a separate suit in the proper court.

Appeal No. 44 of 65 is allowed to this extent only that the relief regarding preemption is decreed in favour of the plaintifs and they will be entitled

to preempt the properties covered by the deed sale dated 128456, registered on 4556. This decrre however will be subject to payment of the

entire amount of consideration of the sale, namely, Rs. 2500/ within four months from this date failing which the suit regarding preemptic will stand

dismissed without further reference to this court.